Friday, July 13, 2007

Lawyer provides abusive driver fees motion to colleagues

McLean lawyer Corinne Magee has a legal argument that the new civil remedial fees for abusive drivers are unconstitutional, and she isn’t keeping it a secret.

She has made it available to her colleagues in the Virginia Association of Criminal Defense Lawyers — and to Virginia Lawyers Weekly. Click here for a copy of her draft motion, which includes argument and citations.

The motion contends that the fees are unconstitutional for two reasons: they are a separate punishment and therefore violate the Double Jeopardy Clause, and they violate the Equal Protection Clause because they apply only to Virginians and not to out-of-state residents.

This coming Monday’s paper (the 7/16 issue) has an article about the fees and the criticisms and tactics of a general district court clerk and traffic defense lawyers.

The process of challenging this law in court will be interesting. Let's assume a General District Court judge presented with this motion agrees with the argument. His only option to prevent the assessment of the civil penalty is to dismiss the charge or reduce it to something which doesn't carry the penalty.

The penalties are self-executing if a person is convicted of a listed offense. Neither the judge, nor the clerk, nor the DMV have any discretion over the application of the fee on conviction and for the next two years.

Now, a direct challenge to DMV-imposed fees in years 2 and 3, or a challenge to a DMV-imposed license suspension on failure to pay year 1's fee, would take a different form. This sort of challenge is more likely to proceed through the courts in a way which could result in the actual voiding of the law.

Thank you for your thoughts. I have long maintained that the best arguments are developed by bouncing ideas off of others. I appreciate the input. I had never thought about the Article VIII, Section 8 angle. A couple of my colleagues have filed declaratory judgment action against the clerk of court in Richmond, but perhaps the best route is against the Commissioner of DMV, once we have standing with a proper client.

Sorry to burst your bubble, but the "equal protection" clause defense was used by an atty. in the Michigan case, and it did not hold water with the appeals court judges.

While the law in MI and VA may be different, they are similar in many ways. And I doubt it will fly.

Be aware that what you're going through is not news to people of other states including Michigan.

Please ALSO be aware that an attorney in Michigan has already filed suit in the MI supreme court to have our law thrown out as among other things, an unconstitutional tax. If successful, it could set a precedent for other states with such similar "bad driver tax" laws. Too bad it's taken 3 YEARS before this has had to happen, because legislators here refuse to repeal it even with bills in the house to do so. Our governor refuses to repeal unless other "pocket picking" initiatives can be produced to replace it.

Legislative hearings were held last year with testimony from judges and drivers on just how asinine this type of law is. It's gotten to the point where some judges refuse to accept guilty pleas that would incur these fines. Instead they tell prosecutors to lower the offense charge. Judges are DISGUSTED and fed up with this law. I also have the text on those legislative hearings, including just how negatively it impacts people in NJ, where this type of law originated. To put it bluntly, it is a failure in every state. The money collected isn't even half of what is owed or was projected by these pick pocket legislators. It's just a tax grab with negative consequences. And everything bad that was predicted from this type of law, has come true in every state it's in.

Did the MI law draw a distinction between in-state and out-of-state drivers, charged and convicted of the same offenses? I don't think so ... I think their law just applied to drivers in general. Perhaps that's a distinction that is important in this case.

If a judge agrees that the law is unconstitutional, then the judge just doesn't impose the fee. DMV can not then impose the 2nd and 3rd segments of the fee, as the statutue requires that they be assessed/ordered by the Court ... DMV can not order the fee, for to do so would be a clear violation of the double jeopardy clause.

In MI the law only applies to drivers who hold MI driving licenses I believe. BUT, if you are convicted of any driving offense OUT of state that has a driver tax associated with it from the MI fee law(reckless driving), then you will get that bill in the mail when you get back to MI.

What you also have to look into is how this fee is collected. In the case of MI, the DMV is not the one who issues the fee. It's cleverly NOT worded in our law; the fine print that was never printed. But the process is that DMV sends your offense to the MI dept. of treasury, who then sends you the bill. Which in my opinion and this attys. is the legal basis for it being a tax, not a fee, as they try to label it. Because the treasury is given the power to levy wages and garnish your tax refund if you refuse to pay. It's a very twisted money making scheme.

And some judges here refuse to convict people of offenses that would incur these fees, like others have suggested they might do. Well ours have. Since they cannot lower the fee, they instruct prosecutors to lower the charges if they feel sorry for the person who got caught on a suspended license for inability to pay the "bad driver tax". All except drunk drivers.

And what I'm more worried about is that the attorneys are only concentrating on one aspect of trying to find this law as unconstitutional. If you only claim it violates equal protection, then what's to prevent them from re-writing it and then passing it again, this time legally.

What needs to be done is to attack it on all vectors of approach. Shoot it down in cold blood as an unconstitutional tax, and an excessive fine that is outlawed by amendment in the constitution. Everyone can agree that no one except the rich can bare the burden of the exorbitant fees in this type of law. And the rich will just keep paying the fine, while the low income person loses their job and goes on welfare, which drains more money from the system than this fee would have put in.